(영문) 전주지방법원 2017.11.30.선고 2017고단1301 판결

Defendant A shall be punished by a fine of KRW 3,000,000. Where Defendant A fails to pay the above fine, the above Defendant shall be confined in a workhouse for a period calculated by converting KRW 100,000 into one day.

The order of provisional payment of an amount equivalent to the above fine against the defendant A. The violation of the Attorney-at-Law Act and the defendant B among the facts charged against the defendant A shall be acquitted.

Reasons

Criminal History Office

1. A around July 2015, Defendant A borrowed an information and communications technician’s career pocketbook from (BG office) office located in Seojin-gu Seoul Special Metropolitan City, Seoul Special Metropolitan City, as an information and communications engineer, from H as an information and communications engineer.

2. A around June 2016, Defendant A borrowed a career pocketbook from a high-class engineer, who is an information and communications engineer, at a (ju)G office located in Seojin-gu, Seoul, and used it from an information and communications engineer.

3. A around September 2016, Defendant A borrowed an information and communications technician’s career pocketbook from J, an information and communications engineer, as a technician, at (G) G office located in So-gu, So-gu, Seoul.

Summary of Evidence

1. Defendant A’s legal statement

1. Each written statement of J, H and I;

1. Application of Acts and subordinate statutes to each information and communications engineer career pocketbook;

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 75 subparag. 5 and 40(2) of each Information and Communications Construction Business Act; selection of fines

1. Aggravation for concurrent crimes;

Articles 37 (former part), 38 (1) 2, and 50 of the Criminal Act

1. Detention in a workhouse;

Articles 70(1) and 69(2) of the Criminal Act

1. Order of provisional payment;

The reason for sentencing under Article 334(1) of the Criminal Procedure Act is that Defendant A’s representative fails to meet the requirements necessary for the Corporation while performing the work of installing broadcasting, sound, and image equipment, and it is a case using information and communications technician’s career pocketbook from H, etc. by lending it. In light of the purpose of Information and Communication Work Business that promotes certain level and safety for the entire construction work and imposes strict restrictions on contracting, etc. by obtaining a certain qualification in an information and communications construction work, it appears that the violation seems to be more severe, and that there is a lot of number of violations, such as lending a certificate of qualification for each of three other information and communications engineers, etc.

However, the fact that Defendant A recognizes the crime of this case and that it is the first offender is favorable to the defendant.

Other circumstances prescribed in Article 51 of the Criminal Act shall be determined as per the disposition, taking into account all the circumstances.

The acquittal portion

1. Summary of the facts charged

A. Defendant A

(i) the basic facts

The defendant is the representative of the State G for the purpose of installing broadcasting, sound, visual equipment, etc. in the Geumjin-gu Seoul Metropolitan Government F.

The defendant, through business such as solicitation or arrangement for public officials in charge of government offices, such as the local government located in North Korea, made L(ju) for the purpose of manufacturing sound, image, and communication equipment in K at the time of strike and (ju)N for the purpose of manufacturing sound, broadcast and image equipment in Gangnam-gu Seoul, Seoul, to supply each product to the relevant government office, and received fees therefor from L(ju) and (ju)N.

2) Crimes related to the supply of L/C products

(1) The Defendant, through his/her business of a public official in charge of the armed forces, provided that L may deliver 5,009,000 won to the armed forces of the armed forces to the armed forces of the armed forces, and received KRW 31,952,400 as a fee, under the pretext of a fee. Accordingly, the Defendant received money and valuables under the pretext of soliciting or arranging affairs handled by a public official in charge of the armed forces of the armed forces.

② The Defendant, through the business of executive officers for the staff members of the branch office South Korea Rural Community Corporation established under Article 25 (through Dodong), was provided with “P” equivalent to KRW 25,691,000 to the branch offices South Korea Rural Community Corporation established under the North Korea Rural Community Corporation’s Seoul Rural Community Headquarters, and received KRW 12,787,000 from L, as fees, on February 5, 2016. Accordingly, the Defendant received money and valuables under the pretext of soliciting or arranging the duties performed by the executive officers of the staff members of the Korea Rural Community Corporation who are deemed public officials.

(3) A crime relating to the supply of N Products

The Defendant, through the business of the public officials in charge of Q middle schools at the Seoul Special Self-Governing Provincial Office of Education, provided that (i) the Jeju Special Self-Governing Province Office of Education may supply (ii) QN to the Seoul Special Self-Governing Provincial Office of Education 14,705,300 won a total of KRW 364,119,60,00,000, in total, from (iii) the Defendant received KRW 7,547,500 as the fee on February 27, 2014; and (iv) from that time, the Defendant received KRW 7,547,500 as the fee on November 30, 2016; and (iv) made it possible for the government offices located in North Korea to supply products worth KRW 654,035,60,00 in total to the government offices located in the former Special Self-Governing Provincial Office of Education; and (v) received money and valuables from N in the name of a public official in charge of affairs such as the former local government.

B. Defendant B

The defendant is the representative of S for the purpose of selling sound equipment in R in Jeonju-si.

The defendant, through a business such as solicitation or arrangement for the public officials in charge of Toyju-gun, made L(ju) products for the purpose of manufacturing sound, image, and telecommunications equipment in K at the time of sowing-si, to be supplied to the Toyju-gun, and received fees from L(ju).

Therefore, around March 2014, the Defendant: (a) provided that L(A) may supply 35,024,400 won to Yju-gun through the business of a public official in charge of Yju-gun; and (b) received KRW 13,968,660 as fees on March 11, 2014. Accordingly, the Defendant received money and valuables under the pretext of soliciting or arranging the affairs handled by the public official in charge of Yju-gun.

2. Defendants’ assertion and judgment

A. Summary of the assertion

As stated in the facts charged, it is recognized that the Defendants requested the supply of the goods by L (State) and (State)N (hereinafter referred to as "stock company") and received fees from the companies when the supply has become dead, but most of the fees are the cost of the installation, maintenance, and repair of the goods, not the cost of solicitation and good offices for the public officials.

B. Determination

The facts charged in this case do not specifically indicate one of the constituent elements of Article 111(1) of the Attorney-at-Law Act. However, the case is prosecuted on the premise that the commission that the Defendants received from L or N is the receipt of a request or arrangement under the Attorney-at-Law Act.

1) Relevant legal principles

It does not mean that money and valuables are given and received under the pretext of arranging between a public official and a client with respect to cases or affairs dealt with by a public official under Article 111 (1) of the Attorney-at-Law Act. It does not mean that money and valuables are given and received under the pretext of providing labor in connection with cases or affairs dealt with by a public official, and where money and valuables are given and received as a price for such case or affairs handled by a public official, it does not mean that money and valuables are given and received under the pretext of offering or arranging a solicitation (see, e.g., Supreme Court Decision 97Do547, Dec. 23, 1997).

2) Specific circumstances

A) According to these legal principles, the supply procedure of the instant product is to be conducted by the following procedures rather than by negotiating terms and conditions with L or N as a contracting party with the Public Procurement Service, which is the direct ordering entity, and the terms and conditions of the contract are determined and implemented. ① An agency located in a region operated by the Defendants (except where the Defendants are not in an exclusive and exclusive relationship with the manufacture) is informed L or N of the fact of ordering a specific government-funded construction project (business report), and L or N, a manufacturer, directly enter into a supply contract with the Public Procurement Service and deliver the product to G or S, which is an agent, and G or S, an agent, is responsible for the installation of the product and maintenance and repair of the product. ② When the implementation of the contract is completed, the manufacture is to be paid to the agency a certain percentage ( approximately 45-60%) as agreed upon with the Public Procurement Service as well as the contract of this case or the contract of this case and the contract of the former region.

B) If so, the following characteristics, i.e., the delivery contract of this case, which appears in the process of concluding the contract, begin at the time of the so-called ‘business report', i.e., (i) the agency located in the region is expected to place an order for the construction work, (ii) the agency is expected to place an order for the construction work, (iii) the agency is expected to place an order for the construction work, and (iv) the agency is expected to pay a certain amount of fees to the manufacturer through negotiations, and accordingly, (iv) the agency's fees are hard to readily conclude that the agency's fees are paid, as well as the installation, maintenance, and repair of the product, and promotion or business expenses for the public official in charge, because there is room to believe that the supply contract of this case is carried out under the initiative of the agency, and there is room to believe that the agency's payment to L/N to the Defendants was made in connection with the public official's solicitation or service, and that part of the service fees were paid to the public official in charge at the time of this case.

C) However, in this Court, L staff U and representative V, who are manufacturers, stated in this Court that “If you get supplied, such as government-funded construction, etc., in the region like Jeollabuk-do, they are at issue of various expenses incurred in the installation, maintenance, repair, etc. of a product, even if they are requested by the Public Procurement Service to supply the product, the product shall be supplied, but if they are requested by the Public Procurement Service, they shall be in charge of installation, etc., and they shall be paid to the agencies, such as G or S, and the tax invoice shall also be issued in a normal manner. In the process, G, the representative of S, or the Defendants or their employees, who are the representatives of the local companies, do not ask about any solicitation or arrangement in order to receive government-funded construction, and they shall not be asked about it under the practice of the public official in charge of the industry.” These witness statements are somewhat different from those of the public prosecutor’s office’s statement, and there is no special case that the public official in charge of the public official in charge in charge of the industry's statement, etc.

D) In addition, even if following the above legal principles, the core of Article 111 of the Attorney-at-Law Act is â€˜reconciliation' and â€˜reconciliation' generally mean that two parties act as a third party (the Korean Language Standard Institute). Even when considering not only the defendants'' statements that have received money but also L/N's representatives or employees' statements in violation of the Attorney-at-Law Act, the money in this case was paid as â€˜fee for the defendants necessary for the installation, maintenance, repair, etc. of products'. Thus, it is difficult to see that the recipient of the money in this case did not affect the normal decision-making of the public official, thereby affecting the public official's normal decision-making, and it is difficult to see that the money in this case was paid for the purpose of mediating the public official and the client's convenience (in other cases, it is difficult to see that the public official provided labor or various kinds of evidence for the public official's statements or other reasons that he did not know about the money in this case.

E) Accordingly, according to the evidence revealed in the record, the Defendants were presumed to have engaged in publicity or business to the public officials in charge in the process of concluding and implementing the government-funded construction contract of this case. However, in full view of the above circumstances, even if the Defendants received money from L or N, it is difficult to view that the Defendants received money from L or N in connection with the case or business affairs handled by the public officials (in this case, the Defendants did not have any specific interest in relation to the expenses for the discretion of the Do council members which are not specially determined, and the agency’s agency’s agent’s agent’s agent’s agent’s agent’s agent’s expenses, such as bribe, etc., were provided to the public officials in charge of the government-funded construction or other local governments’ work in return for the payment of the expenses for the government-funded construction work, and the expenses for the work were set out in the budget after being aware that there was an excessive amount of fees paid by the Defendants, other than the general public relations or business administration, or the specific contents of the agency’s entrustment.

3. Conclusion

Therefore, since this part of the facts charged against Defendant A and the facts charged against Defendant B constitute a case where there is no proof of each crime, it is so decided as per Disposition with the decision of not guilty under the latter part of Article 325 of the Criminal Procedure Act.

Judges

Judges Halo

Note tin

1) The instant case does not stipulate the content of specific solicitation or mediation as well as the charge itself, and the commission agreement between L, N and the Defendants;

It seems that the payment itself is an implied solicitation or arrangement. However, similar to this case, this Court No. 2016 High Court No. 2473

(b) receive money under the pretext of allowing L representative V to carry out a specific construction project at the discretion of the Do Council;

The contents of the mediation of the case or affairs handled by the public official between the defendant and the above V clearly indicate the facts of the crime.

However, this case is not the case. The same applies to other similar cases.

Attached Form

A person shall be appointed.